Scottish Court of Session Decisions

By trust-disposition and settlement executed in 1849 the late William Kippen conveyed his whole estate to trustees, of whom his son James Hill Kippen is now the sole survivor. By codicil in 1853 he directed his trustees immediately after his death to purchase or provide from his means and estate an annuity of £120 sterling in favour of each of his said daughters, payable at the usual terms, the same to be exclusive of the jus mariti of their respective husbands in the event of their marriage, and of their debts and deeds, and of the diligence of their creditors, which annuities thereby directed to be provided to his said daughters should be in lieu of any former bequest in their favour, and in full of all other claims legally competent to them upon his means and estate. The residuary legatees were the pursuer's brothers Richard Kippen and James Hill Kippen. Mr Kippen died in 1853. The trustees proposed to purchase an annuity for £120 sterling in favour of the pursuer, in implement of the provisions contained in her father's settlement and codicils, but the pursuer was desirous that this should not then be done, and ultimately it was arranged that the pursuer should grant, and accordingly on April 14, 1856, she did grant a trust-deed, whereby she appointed her brother Richard Kippen, Andrew Buchanan Yuille, and James Keyden, and certain others now deceased, trustees for her behoof, with full power to them to uplift, receive, and discharge from her father's trustees such sum of money as should be deemed by them to be an adequate price or value for the annuity of £120 sterling, according to the tables provided by the Act 10 Geo. IV.c. 24. The second purpose of the trust gave powers of investment to the trustees, and declared that the trustees should have full power and authority at any time thereafter to invest the trust funds, in whole or in part, in the purchase of an annuity for the pursuer's behoof, seclusive of the jus mariti of any husband whom she might marry, and in no way affectable by her own facts and deeds, or by the facts and deeds of such husband, or by the diligence of creditors. In the third place, it was declared that the trustees should make payment to the pursuer during all the days and years of her life, and that also seclusive of the jus mariti or right of administration of any husband she might marry, of the whole free annual interest, profits, and dividends of the trust funds thereby committed to them, and in the event of her trustees at any time thereafter purchasing an annuity of £120 for her, and of there being a surplus of the fund remaining after making such purchase, it was declared that it should be lawful for them to make payment to the pursuer or otherwise to apply for her behoof the surplus of the principal sums of money thereby intrusted to them, it being thereby declared to be the pursuer's intention that the trustees should have as full powers in every respect over the surplus of money as what any person otherwise unfettered enjoyed or possessed in the management of his own affairs, and that neither the pursuer herself nor any husband whom she might marry should have any right or title to interfere with the management of the funds thereby entrusted to them, or to control the trustees in the application of the same, or the annual profits and proceeds thereof otherwise than as above provided for; and that all receipts for annual profits by the pursuer alone should be full and ample discharges and acquittances therefor without the concurrence of any such husband, any law or custom to the contrary notwithstanding. Lastly, the trust-deed provided that after the death of the pursuer her trustees or trustee should denude themselves of the trust thereby created, and should pay over the sums of money then remaining in their hands to the pursuer's heirs, executors, or assignees whomsoever

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in such manner and way as she should at anytime of her life, and even on deathbed, by any writing under her hand, direct, and failing such appointment, to her own nearest heirs whomsoever.

By discharge dated May 1856, and recorded in the Books of Council and Session on March 3, 1860, the pursuer, with the special advice and consent of her trustees under her trust-deed, and of her brothers James Hill Kippen and Richard Kippen, her father's residuary legatees, on the narrative of the codicil of 7th January 1853, and that she had requested James Hill Kippen and Richard Kippen to consent to the sum required being paid to her trustees, and that her father's trustees had consented, on receiving a discharge from the pursuer, and obligation by her and her brothers freeing and relieving them of the annuity and all further responsibility or liability in regard to it, and on the further narrative of the trust-deed by the pursuer, and payment of the sum of £2448 sterling to the trustees named in it, discharged the trustees of her father of the annuity and of all claims and demands competent to her against them or the trust-estate. The discharge also contained an obligation by the pursuer and her brothers to relieve their father's trustees of all responsibility, and a declaration by the trustees under the pursuer's trust-deed, with her consent, that they held the money paid to them for the purposes of the trust, and the further declaration that in the event of the pursuer effectually challenging the discharge of the annuity thereby granted, and repudiating the same, and calling upon the trustees of William Kippen still to make payment of the said annuity, the trustees under her trust-deed should be bound to apply the sum in the purchase of an annuity.

Miss Kippen now raised this action to have it found that she was entitled to revoke her trust-deed, and demand payment of the capital conveyed to her trustees, or at least the surplus after purchase of an annuity of £120. She called as defenders her trustees and James Hill Kippen for any interest he might have. Messrs Yuille and Keyden were the only parties who appeared as defenders. They stated they were willing to pay over the surplus claimed, but that they were not entitled to pay over the principal without the consent of Mr James Hill Kippen, which had been refused, or the sanction of the Court. The Lord Ordinary (Mure) held the trust-deed only revocable quoad the surplus.

The pursuer reclaimed.

Solicitor-General and Balfour, for her, argued that as Miss Kippen was the sole party interested in the deed she was entitled to revoke it. She could sell the annuity if purchased for her, and trustees were not entitled to do what could be undone— Gordon v. Gordon's Trustees, March 2, 1866. The provision was not alimentary. It was settled in English law that an annuitant could demand the capital sum— Stokes v. Cheek, 29 L. J. (Ch. R.) 922. And this had also been decided in Scotch law in the case of Tod's Trustees, March 18, 1871.

Watson and J. M. Lees replied that the direction was to “purchase or provide from my means and estate,” and if the trustees gave Miss Kippen the interest to the amount of £120 they might retain the capital. In Tod's Trustees the direction was to purchase the annuity only if the trustees thought fit, and the annuitants were the only parties interested. Here there were residuary legatees. Revocation of the trust-deed would cause the trustees to repay the capital to Mr Kippen's trustee, as indeed they were bound to do for their own safety. The provision was intended to be alimentary. A truster could not revoke a trust-deed granted to guard against a specific risk— Balderston v. Fulton, Jan. 23, 1857—or where the restrictive terms of the deed were a condition of its being granted. Even if Miss Kippen was entitled to revoke the trust-deed she should have called her brother, not merely for his own interest, but as trustee under her father's settlement.

At advising—